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UPD UK Government Delay Internet Piracy Tackling Digital Economy Act to Spring 2012

Posted: 22nd Mar, 2011 By: MarkJ
UK DCMS internet copyrightpirate flagThe UK governments Department of Culture, Media and Sport (DCMS) has admitted that its controversial Digital Economy Act (DEA), which seeks to tackle "illegal" internet copyright infringement (P2P - File Sharing) by broadband ISP customers, has been delayed until the spring of 2012 at the earliest.

Legal concerns over how ISP costs are apportioned (here), an official review of the website blocking proposals (here), problems with the fallibility of using IP addresses as evidence (as highlighted by the recent ACS Law case) and a Judicial Review (here) brought forward by two ISPs, BT and TalkTalk UK, have all conspired to delay the act. Not to mention the many technical hurdles that Ofcom has had to overcome in drafting its initial Code of Practice (here).

The DEA seeks to tackle internet piracy by imposing a series of new measures upon ISPs and their customers, including a system of customer warning (notification) letters. However it also proposes tough new enforcement measures that could lead to restrictions on internet speeds, account disconnection (i.e. "suspension"), website blocking and your personal details being shared with rights holders. This could have far reaching implications that extend beyond individual consumers and into the realm of shared business networks.

The government has also admitted that its cost sharing (secondary legislation) proposal (here), which would see ISPs shouldering 25% of the costs and Rights Holders managing 75%, required EU approval before it could proceed. However that approval has now been granted.

A DCMS Spokesman said (The Telegraph):

"Since the DEA passed into law there has been a considerable amount of work to do to implement the mass notification system. Secondary legislation setting out how the system will be paid for and how it will work has to be passed by Parliament. Ofcom also has to set up an appeals process."

Meanwhile a new Media Policy Project from the London School of Economics (LSE) has heavily criticised the act for giving "too much consideration to the interests of copyright holders" and ignoring almost everybody else. The report also describes Rights Holder figures for revenue losses from piracy as "often [being] based on the wishful thinking" because it assumed that "most unauthorised copies would be replaced by the sale of a legitimate product".

In reality somebody who downloads 1,000 music tracks probably would never have brought that many in the first place, especially if they're of the younger generation and don't have much or any money. That's not to say that piracy isn't still a hugely serious and damaging problem, just that its impact may have been exaggerated.

The Judicial Review of the DEA by BT and TalkTalk is due to begin tomorrow (Wednesday 23rd March 2011). The government has said that it expects to win the case, which was originally brought based on the following four grounds (further details).
The Four Grounds for Judicial Review

* Firstly the Government should have notified the European Commission under the Technical Standards Directive which they failed to do.

* The two ISPs also claimed that the provisions were not compatible with the E-Commerce Directive which provides that ISPs cannot be held liable for data going though their networks.

* Thirdly, ISPs have to deal with data that is not specifically permitted under the Privacy and Electronic Communications Directive.

* The fourth ground deals with the disproportionate impact of the provisions on ISPs and in particular referred to the opinion of the European Data Protection Supervisor, Peter Hustinx. He concluded that generic three strikes regimes are a disproportionate measure.
At the time of writing it looks likely that the first ground is no longer relevant, which could also affect the second and third grounds. The fourth ground is perhaps the most difficult and took the longest to decide upon, although it could also prove to be the most interesting. All eyes will be on this week's court case.

UPDATE 12:33pm

It's been pointed out to us that there are actually five grounds (not the original four) for the Judicial Review, which are:
· Compliance with Technical Standards Directive (which says there was a need to notify Europe in advance of the legislation);

· Compatibility with privacy directives;

· Compatibility with e-commerce directives;

· Whether the obligations are proportionate;

· Additional issue of potential incompatibility with the Authorisation Directive which is part of EU law governing the regulation of communication providers including ISPs.
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